September 8, 2004

Private: Rape Shield Laws Punctured by Recent Bryant Dismissal


By Vanessa Volz, Blog Editor
Last week's announcement that prosecutors in the Kobe Bryant criminal case would not be proceeding with sexual assault charges because the alleged victim refused to testify in court surprised few. The dismissal of the case symbolized the end of a long saga for the 20-year-old accuser, from the accidental leaking of her name to the court's decision to admit substantial evidence relating to the accuser's sexual history. After such an end to this high-profiled case, many sexual assault advocates are left wondering what impact this case will have on rape victims who decide to press charges against their perpetrator.

The victim in the Bryant case was "dragged through the mud publicly" with accidental circulation by the court of her name and narratives about her sexual history, said Michelle Anderson, a law professor at Villanova University who specializes in rape law. Under an exception to the Colorado rape shield law, the judge ruled that the defense would be allowed to present evidence about the woman's sexual activity in the three days surrounding the encounter. Bryant's defense claimed that the woman had multiple sex partners in those days, and therefore her injuries could have been caused by someone other than Bryant.
Rape shield laws, which first developed in the 1970s, were intended to limit such testimony about an accuser's sexual and psychological history. Since these statutes became law, the justice system and media organizations have enacted guidelines to protect the privacy of rape victims and to shield them from character attacks that often make women reluctant to testify.
However, these developments in rape law have recently suffered some set-backs. In 1989, for example, Geneva Overholser, the then-editor of the Des Moines Register, wrote a widely noted challenge to the practice of withholding the name of victims, arguing that the anonymity perpetuated the stigma of rape. Two years later, during the William Kennedy Smith rape trial, a London tabloid named the accuser and the Florida-based Globe published her name and photo, which was soon duplicated by other news organizations. A growing minority of editors now argue that not naming the accuser has become infeasible, especially in high-profile cases.
But others, such as Susan Estrich, a University of Southern California law professor and feminist author, disagree. Estrich believes it still makes sense to try to shield victims. "Obviously, this victim's privacy is not being respected," she said of the victim in the Bryant case. Moreover, Sarah Graham Miller, a spokeswoman for the Rape, Abuse & Incest National Network, is concerned that such explicit media coverage could prevent other rape victims from coming forward. "In a lot of these high-profile cases, [the victims] are tried in the media," before the case even gets to court, she said.
Aside from the media's tactics, the rape shield laws themselves seem to be diminishing in impact. Here in the Bryant case, the District Judge Terry Ruckriegle ruled that the details of the woman's sex life during the three days surrounding her encounter with Bryant was admissible evidence, thereby creating an exception to the Colorado statute that normally prevents such information of a victim's sexual history. This decision contributes to a trend that intensified last summer when the New Jersey State Supreme Court in State v. Garron made it easier for courts to admit evidence of the victim's sexual history in sexual assault cases.
The New Jersey court's decision dealt "a serious blow to the protections afforded victims of sexual assault under the state's Rape Shield law. This case is going to have a chilling effect across the board-not only on victims who will now be even more reluctant to report sexual assaults, but it will seriously impact how cases of sexual assault are investigated and ultimately prosecuted," said Deborah Shepherd, executive director of the New Jersey Coalition Against Sexual Assault.
At issue in State v. Garron was the defendant's contention that the sexual contact in the case was consensual, which he believed was evidenced by their prior relationship. As noted by Justice Coleman in the one dissenting opinion, "Under the Court's holding today, it will be virtually impossible for a woman to prove that she was raped by a man whom she had previously expressed interest in, flirted with, or even dated, even if she never engaged in sex with him prior to the assault occurring."
Such developments in rape shield laws, advocates worry, will set back efforts to make victims feel that if they report their rapes, their attackers will be brought to justice. "Victims have to believe the system is encouraging them to come forward, to go to the hospital and to prosecute their offenders," Sarah Graham Miller said.

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